Research › Search › Judgment

Orissa High Court · body

2014 DIGILAW 663 (ORI)

Sachidananda Mahakud v. Manas Ranjan Samal

2014-10-14

A.K.RATH, AMITAVA ROY

body2014
Judgment AMITAVA ROY, C.J. In assailment is the judgment and order dated 15.3.2013 passed by the learned Single Judge in W.P.(C) No. 2803 of 2013 thereby declining to sustain the appellant/writ petitioner’s impugnment of the order dated 06.11.2012 passed by the learned Civil Judge (Jr.Division), Jajpur in Election Misc. Case No. 16 of 2012 rejecting his impeachment of the maintainability of respondent No.1’s petition as not being presented in accordance with Section 31 of the Orissa Grama Panchayat Act, 1964 (for short, hereinafter referred to as ‘the Act’) and Rule 88 of the Orissa Grama Panchayats Election Rules, 1965 (for short, hereinafter referred to as ‘the Rules’). 2. The facts in bare minimum inevitably essential for the present adjudication are that the present appellant along with respondent No.1 herein had contested the election for the post of Sarpanch of Udayanathpur Grama Panchayat (for short, hereinafter referred to as ‘the Grama Panchayat’) under Bari block in the district of Jajpur in the year 2012. In the battle of hustings, the appellant/writ petitioner was returned elected. Subsequent thereto, the respondent No.1 filed the Election Petition Case No. 16 of 2012 in the Court of Civil Judge (Jr.Divn.), Jajpur being the Election Tribunal under the Act questioning the appellant’s eligibility as a candidate contending that he was disqualified for the post of Sarpanch as he is the father of three children born after the year 1995. According to the appellant/writ petitioner, though the election petition was presented by the respondent No.1 on 6.3.2012, after the publication of the results on 21.02.2012, it was not accompanied by the statutory deposit as security for costs in terms of Section 31 of the Act and thus the petition was clearly not maintainable in law. He has averred that the challan for deposit of amount of Rs.150/-towards security for costs was in fact filed on 6.4.2012 i.e. after a month of filing of the election petition, which was thus apparently barred by time. After receiving the notice of the Election Petition, as the appellant has asserted, he filed an application before the Election Tribunal seeking dismissal of the Election Petition on the ground that the same was not accompanied by the security for costs of Rs. 150/-as enjoined in Section 31 of the Act. After receiving the notice of the Election Petition, as the appellant has asserted, he filed an application before the Election Tribunal seeking dismissal of the Election Petition on the ground that the same was not accompanied by the security for costs of Rs. 150/-as enjoined in Section 31 of the Act. The learned Election Tribunal, however, by order dated 6.11.2012 dismissed the said application on the ground that the plea involved mixed questions of law and fact and could not be decided before trial. Having unsuccessfully impugned the same before the learned Single Judge in the aforementioned writ petition, the appellant/writ petitioner is in appeal. 3. The respondent No.1 in his counter in the present appeal, while endorsing the validity of the impugned decision, has asserted that he indeed had filed the Election Petition on 6.3.2012 along with the security for costs by cash with the required challan and also filed a separate petition seeking a direction from the Election Tribunal to the Nazir of the Civil Court to accept the said deposit. Apart from pleading, that the order dated 6.3.2012 passed by the Election Tribunal is a clear testimony of the authenticity of this plea, the respondent No.1 averred further that the appellant/writ petitioner, after entering appearance in the election proceeding, though did file his objection, he did not express any reservation with regard to the deposit of security for costs. According to him, on the basis of the pleadings, learned Election Tribunal framed the issues, where after he led his evidence and it was after the closure of his part of the evidence, that the appellant/writ petitioner filed the application dated 3.10.2012 contending that the Election Petition had been filed without depositing the security for costs. The respondent No.1 further maintained that in view of the official formalities involved, the amount deposited by him was processed and was eventually recorded in the challan on 6.4.2012. The answering respondent thus insisted that the deposit of security for costs was in conformity with the mandate of Section 31 of the Act and thus no interference in the appeal was warranted. 4. The learned Single Judge, as the impugned judgment and order would reveal, did notice that the election petition was filed on 6.3.2012 with a challan to deposit the amount towards security for costs and that the entry with regard to the said deposit was made on 6.4.2014. 4. The learned Single Judge, as the impugned judgment and order would reveal, did notice that the election petition was filed on 6.3.2012 with a challan to deposit the amount towards security for costs and that the entry with regard to the said deposit was made on 6.4.2014. It was thus held that Election Petition could not be construed to be delayed. The decision of the learned Election Tribunal was thus sustained. 5. Mr. Rath has emphatically argued, with reference to Section 31 of the Act and Rule 88 of the Rules and a copy of the receipted challan dated 6.4.2012, that it being patent on the face of the records that the mandatory deposit of security for costs had not been made on 6.3.2012, i.e. the last day of the limitation of filing the election petition, the learned Election Tribunal and the learned Single Judge have grossly erred in repelling the challenge to the maintainability thereof. The learned counsel has argued that no cash deposit, as claimed by the respondent No.1, had also been made and that the application referring to the same had been introduced subsequently to save the election petition. That in the attendant facts and circumstances, the Election Tribunal had no jurisdiction to extend the period of limitation was emphasized as well. 6. Per contra, Mr. Sahoo maintained that it being evident from the order dated 6.3.2012 passed by the learned Election Tribunal and the application of the even date mentioning the deposit of the prescribed amount by way of security for costs, that there has been undeniable compliance of Section 31 of the Act and Rule 88 of the Rules the impugned judgment and order is unassailable in law and on facts and thus the appeal is liable to be dismissed. 7. We have examined the pleaded facts and the documents on records. We have also analysed the contentious assertions. 8. It is not in dispute that the results of the election were declared on 21.02.2012 and that the election petition was otherwise presented in time i.e. on 6.3.2012. The order dated 6.3.2012 passed by the Election Tribunal is quoted hereunder for ready reference: “1. 6.3.2012. Advocate Harish Ch. We have also analysed the contentious assertions. 8. It is not in dispute that the results of the election were declared on 21.02.2012 and that the election petition was otherwise presented in time i.e. on 6.3.2012. The order dated 6.3.2012 passed by the Election Tribunal is quoted hereunder for ready reference: “1. 6.3.2012. Advocate Harish Ch. Sahoo and another presented a petition on behalf of the petitioner supported by an affidavit praying to declare the petitioner as elected Sarpanch of Udayanathpur G.P. along with a separate petition praying to direct Nazir to receive the deposited amount. Register. Put up on 14.3.2012 for documents.” It would be apparent there from that the Election Petition was presented on 6.3.2012 and further a separate petition was also filed seeking an order directing the Nazir of the civil court to receive the deposited amount. The records of the Election Petition produced before this Court do contain a petition filed by the respondent No.1 mentioning about the deposit referred to in the order dated 6.3.2012 and also carrying a prayer for directing the Nazir to receive the same. There is no material on record to doubt the veracity of the contents of the petition dated 6.3.2012 mentioning about the deposit as well as of the order of the even date of the learned Election Tribunal. The respondent No.1’s pleaded assertion that along with the Election Petition on 6.3.2012, he had made cash deposit of Rs. 150/-as security for costs thus is to be accepted. The photo copy of the challan bears a seal dated 6.3.2012 of the Court of the learned Civil Judge (Jr. Divn.), Jajpur i.e. Election Tribunal. The deposit of Rs.150/-, however, by way of security for costs for the election petition is registered to be on 6.4.2012. Thus the document as well supports the respondent No.1’s averments that the election petition was filed on 6.3.2012 along with cash deposit of Rs.150/-and a challan to that effect and that on completion of necessary formalities the said deposit came to be recorded on 6.4.2012. 9. Section 31 of the Act and Rule 88 of the Rules to the extent relevant for the present adjudication are quoted herein below: “31. 9. Section 31 of the Act and Rule 88 of the Rules to the extent relevant for the present adjudication are quoted herein below: “31. Presentation of petitions – (1) The petition shall be presented on one or more of the grounds specified in Section 39 before the Civil Judge (Junior Division) having jurisdiction over the place at which the office of the Grama Sasan is situated together with a deposit of such amount, if any, as may be prescribed in that behalf as security for costs within fifteen days after the date on which the name of the person elected is published under Section 15. xxxx xxxx xxxx” “88. Election petitions – The following amounts shall be deposited as security for costs along with an election petition filed under Chapter-V of the Act: Rs. P. Election petition relating to election of Sarpanch 150.00 Election petition relating to election of Naib-Sarpanch 50.00 Election petition relating to election of a Member 40.00” Whereas Section 31 of the Act predicates that the election petition has to be presented together with a deposit of such amount as may be prescribed as security for costs within 15 days after the day on which the name of the person elected is published under Section 15, Rule 88 of the Rules prescribes the amount to be deposited i.e. Rs.150/-if the election petition pertains to election to the office of Sarpanch. Noticeably neither Section 31 nor Rule 88 thus obligates the making of the deposit of security for costs in any particular manner. The Act being a special enactment and Rules having been framed thereunder, in absence of any prescription of a mode or manner of deposit of the security for costs, in our comprehension it would be impermissible, having regard to the disastrous consequence that would ensue, to conclude that the deposit by way of cash amount of Rs.150/-made by the respondent No.1 was not in conformity with the requirement of Section 31 of the Act and Rule 88 of the Rules. The insistence for a particular mode or manner of deposit, having regard to the scheme of Section 31 of the Act and Rule 88 of the Rules, would amount to committing violence thereto. The insistence for a particular mode or manner of deposit, having regard to the scheme of Section 31 of the Act and Rule 88 of the Rules, would amount to committing violence thereto. To reiterate, there is nothing to doubt the correctness of the contents of the order dated 6.3.2012 and the petition of the even date filed by the respondent No.1 mentioning about the cash deposit with the challan and seeking the order of the learned Election Tribunal directing the Nazir to formalize the same. Further, it is significant to note, as would be otherwise apparent on the face of the order sheets of the election proceedings, that the appellant/writ petitioner raised the plea of want of statutory deposit of security for costs much after the proceedings had advanced and was at the stage of closure of recording of evidence of the respondent No.1/election petitioner. 10. On a cumulative consideration of the above, we are of the unhesitant opinion that the Election Petition filed by the respondent No.1 had been in accordance with the prescription of Section 31 of the Act and Rule 88 of the Rules. We find no cogent or convincing reason to interfere with the impugned judgment and order. Instead we find ourselves in respectful agreement with the learned Single Judge so far as the dismissal of the writ petition is concerned and thus dismiss this appeal. 11. Learned Election Tribunal would proceed to hear the Election Petition on merits and dispose of the same as expeditiously as possible, but not later than eight weeks from the date of receipt of a certified copy of this order. We make it clear that the issue with regard to maintainability of the Election Petition, so far as it relates to the deposit by way of security for costs, stands concluded by this adjudication at this level.